What You Need To Know If You're Trying To Fire An Employee Who's Been Ill
Dealing with a problem employee is bad enough, but when that same employee has also been ill and has threatened a lawsuit against you if you dare fire them, it is even worse. You can't fire an employee for doing a bad job if it's related to their illness and if you can accommodate them and help them improve. But that certainly does cloud the situation when the employee is not only ill but also a bully or simply terrible at their job no matter their health status; your other employees deserve a work environment where they are not dealing with inappropriate behavior. The situation isn't totally hopeless, but you do need to be very careful. As you deal with them, you need to prepare as if you were headed to court, and that includes speaking with an employer defense attorney to ensure you create an air-tight case.
Document All Problems in Writing at the Time
Any problems (not due to the illness) you encounter with this employee must be documented in writing and at the time they happen. Don't try to document by thinking back over the past month about what happened; if the employee insults someone and you witness it, for example, document it then. You need to build up a record of these instances to show that the employee's behavior or work performance itself is the cause for dismissal and that these problems are occurring separately from the illness. In fact, go over your log occasionally with your human resources department to ensure that everything in there is not something that the illness would produce. For example, if the employee is not friendly one day and snaps at someone because that day they're in pain, you can't really write them up for that, especially if they apologize and take steps to not do that again. But if the employee is actively seeking out other people and calling them nasty names, that really can't be blamed on the illness.
Show (and Document) Your Attempts to Fix the Situation Without Firing
Also, keep a very good record of your attempts to accommodate the employee and fix situations that they say are due to the illness. If they want the lights dimmed due to a constant headache, providing them with their own office where they can control the lighting may be a workable option. If it is, show that you tried, and check in with the employee to see how the solution is working out. You need to build a very good record showing that you did everything possible to reasonably accommodate the employee.
Wait for Budget-Mandated Layoffs
You'll want to speak with an employer defense lawyer about this first, but if you know that the company is headed for changes that will require layoffs, that may be the least problematic route. That's not a guarantee, of course, but if the budget dictates that you let three people go, that may be the time to make the problem employee one of them. Again, be very careful here because you don't want the employee coming back and saying that you just wanted to get rid of them because of their illness. You'll need records showing why their position was among the most appropriate to eliminate.
A labor lawyer who specializes in employer defense is a necessary partner in this because you want to have a very clear case showing that your actions were in response to the employee's own behavior and not anything the illness caused. It may take time, but with care, you can release this employee from your payroll.
Contact an employer defense attorney to learn more.